MINES (WORKING FACILITIES AND SUPPORT) BILL (Hansard, 15 July 1974)

§ LORD DRUMALBYN
My Lords, T beg to move that this Bill be now read a second time. The purpose of this short Bill is to extend to all minerals the power of the Chancery Court to confer on any person a right to search for or work any of the nine minerals mentioned in paragraph 1 of the Table in Section 1 of the Mines (Working Facilities and Support) Act 1966 and also to coal which is the subject of paragraph 3 of the Table. That Act itself is based on a large number of Acts dating from 1923. These nine minerals are iron ore and ironstone: tin, lead, copper, copper and tungsten ores: fluorspar, barytes and oil shale. In respect of all other minerals, other than these plus coal, the persons on whom the Court may confer such a right are at present restricted by the 1966 Act to persons who have an interest in the minerals, or in the case of minerals owned in small parcels, in minerals adjacent to them. That is what paragraph 2 of the Table to which I have referred provides. However, it may well be in the national interest that other minerals, such as stone, gravel, china clay, sand, should be worked no less than the nine minerals mentioned in Table 1.
This is not an uncomplicated matter, but I shall try to simplify it so far as I can and I shall leave out any points that are not immediately relevant to the purpose. The procedure for the grant of a right to search for or work any of the nine minerals is set out in Section 4 of the Act of 1966. Application has to be made to the Minister, who must transmit it to the Court unless he is satisfied that a prima facie case has not been made out. Section 3 lays down certain safeguards, limitations and conditions. The Court may not grant the right to search for or work minerals unless it is satisfied that it is in the national interest to do so, nor may the Court grant the right unless it is shown that it is not reasonably practicable for one of four specific reasons to obtain it by private agreement. These reasons are, first, that the persons with power to grant the right are numerous or have conflicting interests; second, that any of the persons cannot be ascertained or found; third, that any of the persons 839 from whom the right must be obtained has not the necessary powers of disposition, and fourth, that the person with power to grant the right unreasonably refuses to grant it or demands terms which are unreasonable. A further safeguard is that before transmitting the application to the Court the Minister must communicate with the person who is alleged to lack the necessary powers of disposition or to have refused to grant the right or to have demanded terms which are unreasonable.
When the Court is satisfied that the application falls within the limitations and complies with the requirements of the Act, it may grant the right to search for or work the minerals on such terms, subject to such conditions and for such period as it may think fit. In default of agreement between the parties on compensation or consideration to be paid by the applicant, the Court may also determine the amount to be paid by him. It can grant the right only provided it is satisfied that it is expedient in the national interest to do so.
There is one other safeguard which is extremely important. Planning permission must be obtained before the minerals can be actually worked. Local planning authorities have powers under the Town and Country Planning General Development Order 1973 to grant planning permission for development which does not accord with the provisions of their development plan. The directions are, in fact, those contained in the Town and Country Planning (Development Plans) Direction 1965, with which there was issued by the Minister of Housing and Local Government Circular No. 70/65 explaining the procedure for dealing with applications relating to development not in accordance with the plan. Where the proposal would not in the opinion of the local planning authority involve a substantial departure from the provisions of the plan, nor affect the whole of the neighbourhood, the local planning authority may deal with it themselves. In other cases they must give the Secretary of State the opportunity of issuing a direction how the application should be dealt with.
It is normal for undertakers wishing to work minerals to apply for planning permission before applying to the Minister 840 for the right to work the minerals. This is clearly in their interest and can be taken into consideration by the Court. This, then, my Lords, is the procedure already available to anyone who wants to seek or work any of the nine favoured minerals, and coal, mentioned in paragraphs 1 and 3 of the Table in Section 1 of the 1966 Act. It is also available to anyone who wants to work any minerals and has any interest in the land. This Bill seeks simply to extend the procedure to anyone else who wants to seek for or work any minerals, provided the Court is satisfied that it is in the national interest that the minerals in question should be sought for or worked. The mere existence of these powers tends to bring the parties together; and in fact the number of cases that have been taken to Court is small; they relate mainly to ironstone. This shows the usefulness of this particular procedure. My Lords, I beg to move that this Bill be now read a second time.

EARL FERRERS
My Lords, I am grateful to my noble friend for what he has said in moving the Second Reading of this Bill. I shall be brief because there is only one point with which I would be concerned. I believe my noble friend answered it in his last sentences. I am fully aware that the laws of minerals and mineral working are extremely complicated. However, as I understand it. at present if one of the nine minerals in the preferred list is found on an area of ground it is possible to obtain a court order granting permission to exploit that mineral provided that planning permission is subsequently obtained; and it is likely that if the court made an order saying that it was in the national interest planning permission would subsequently be obtained. If, however, a mineral is outside the list of nine—and that would include sand and gravel—then it is necessary to obtain planning permission in advance, and an agreement is then entered into between the extractor and the owner. It is only if the owner cannot or does not wish to have his minerals extracted that the extractor can then go along to the court, and only if the court is satisfied that it is in the national interest will the extractor be given permission to extract these minerals.
841 I fear, from what my noble friend said at the very end (although I may have got it wrong) that Section 265 of the Town and Country Planning Act is to be repealed. That is the section which provides the "national interest" basis. If all these other minerals were to be included with the list of preferred minerals, then it would mean that a High Court decision could be given on whether or not minerals should be extracted even if it were not in the national interest. If that were so, then the decision would be made between whether it was in the owner's interest or the extractor's interest, and I fear that this might leave many areas of land, which at the moment are protected, subject to mineral extraction. I hope that my noble friend will be able to reassure me that in fact I am wrong. However, the Explanatory Memorandum of the Bill says: By virtue of section 265 of the Town and Country Planning Act 1971, other minerals and mineral substances may be the subject of such an Order only where a development plan provides that the land under which they are situate is to be used for the purpose of securing the winning and working of any minerals comprised therein. The purpose of this Bill is to place all minerals and mineral substances in the same category by extending the Court's powers under paragraph 1 of the 1966 Act and repealing section 265 of the Town and Country Planning Act 1971". I should like the noble Lord, Lord Jacques, to answer this question. I have to declare an interest in a minor way in so far as I am a farmer and am also connected with land which has minerals upon it, but that is not the reason for my intervention. My question is whether, if this Bill goes through unamended, the criterion of "national interest" will still be brought to bear upon any High Court order with regard to minerals which at present are outside the list of nine.

§ LORD JACQUES
My Lords, the demand for minerals and the pattern of mineral working in this country has changed considerably since the nine classes of minerals were first selected for preferential treatment in the Mines (Working Facilities and Support) Act 1934. The Government therefore have no objection to the extension of the court's powers under paragraph 1 of the Table in Section 1 of the 1966 Act, as now proposed in this Bill. Nor do we oppose Section 265 of the Town and 842 Country Planning Act 1971 and Section 252 of the Town and Country Planning (Scotland) Act 1972, simply because neither of these sections would be required.
In answer to the noble Earl, Lord Ferrers, may I say that in deciding whether the grant of rights would be in the national interest the court is simply a substitute for the person or persons who cannot or will not grant the rights, and the decision operates solely between them and the applicant. The fact that the court is to be satisfied about the national interest may be regarded as the justification for the court overriding the rights of the private citizen. Planning considerations are an entirely separate matter and the grant of rights does not prejudice the exercise of the planning functions of either the local planning authority or the Secretary of State where he is involved.
I can also give an assurance that no mining operations would be allowed to proceed without planning permission. Operators of non-preferred minerals have been pressing for an amendment of the law in line with this Bill and their demand would appear to be not unreasonable. We do not expect a flood of applications. Under the 1966 Act there have been only six applications altogether. Three of those applications never went further than the Secretary of State. Of the other three, one was withdrawn, another was settled out of court and one has yet to be heard. Under this Act, therefore, the court has never made a substantive decision. The Government have no objection to the Bill but they do not regard it as a substitute for the thorough overhaul of mineral rights legislation that will be required in due course.

§ LORD DRUMALBYN
My Lords, I am grateful to the noble Lord, Lord Jacques, for what he has said. I think that he has answered the point to the satisfaction of my noble friend. It is, of course, the case that Section 265, the section which is to be repealed, has never been activated and that it does not need to be activated if we have this Bill. That is the reason for repealing it.
So far as planning permission is concerned, this can be obtained either before or after the application to the court. The 843 point is that it has to be obtained, and all the usual safeguards there are invoked. I am informed, I hope correctly, that in cases of applications for development of minerals there is invariably a public inquiry. So far as the decision of the courts is concerned, it is clearly laid down in Section 3(1) of the 1966 Act as follows: No right shall be granted under section 1 of this Act unless the court is satisfied that the grant is expedient in the national interest. Therefore I think that the case of the protection of the environment and the protection of agricultural interests is fully safeguarded here. All of these claims have to be evaluated in order to see where the balance of the national interest lies, but certainly any person who is concerned would have ample opportunity of making his case under this Bill, as he has done in the case of the nine minerals in the past. Therefore I hope that my noble friend will be satisfied with that answer.
It may be worth while to mention that in the structure plans which have now started to be submitted under the 1966 Act, one county has made it quite plain that the surrounding counties will be consulted throughout the structure plan period to ensure that decisions in respect of mineral applications are compatible with regional requirements and that one authority cannot, by an unduly restrictive policy, effectively export the demand for minerals to its neighbouring counties. It is also said that mineral operators are to be encouraged to work such deposits as quickly as possible and to be required to restore workings to a beneficial use by conditions attached to the planning permission. Finally, if I may quote from another county, it says that it is the county's policy—and I quote only the relevant words— that the workings are not injurious to amenity".